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Plaintiff Entitled to Summary Judgment on His Labor Law 240 (1) Cause of Action—Plaintiff Fell from Temporary Staircase Which Was Wet from Rain

The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from a temporary staircase which was wet from rain. The dissent argued that there was a question of fact whether a safer temporary staircase could have been provided, and, therefore, summary judgment in plaintiff’s favor was not appropriate. The majority wrote:

Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. As the dissent recognizes, plaintiff was engaged in a covered activity at the time he slipped and fell down the stairs of a temporary tower scaffold. A fall down a temporary staircase is the type of elevation-related risk to which section 240(1) applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute … . As we stated in Ervin v Consolidated Edison of N.Y. (93 AD3d 485, 485 [1st Dept 2012]), involving a worker who fell when the temporary structure he was descending gave way, “It is irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity-related risk.” We are thus at a loss to comprehend the dissent’s reasoning that although the temporary staircase was a safety device and although it admittedly did not prevent plaintiff’s fall, there is nonetheless a factual issue which would defeat plaintiff’s entitlement to partial summary judgment on his section 240(1) claim.

The fact that the affidavits of plaintiff’s and defendant’s experts conflict as to the adequacy and safety of the temporary stairs does not preclude summary judgment in plaintiff’s favor. A plaintiff is entitled to partial summary judgment on a section 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants’ failure to take mandated safety measures to protect him against an elevation-related risk … . Plaintiff’s expert opined, inter alia, that the stairs showed obvious signs of longstanding use, wear and tear; therefore, a decrease in anti-slip properties was to be expected. Given that it is undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been. O’Brien v Port Auth. of N.Y. & N.J., 2015 NY Slip Op 06749, 1st Dept 9-8-15

 

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